Madras High Court
Panchavarnam vs Muthurulayee on 5 July, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.(MD)No.88 of 2018
and
C.M.P.(MD)No.1876 of 2018
1.Panchavarnam
2.Rakkammal
3.Murugan
4.Ramar
5.Sethuraman
6.Lakshmanan ... Appellants
-Vs-
1.Muthurulayee
2.Mahalingam
3.Arumugam
4.Mahalingam
5.Irulappan ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
against the judgment and decree passed in A.S.No.6 of 2014 on the file of the
IV Additional District Court, Madurai, 22.01.2015, which was confirmed in
O.S.No.506 of 2006 on the file of the II Additional Sub-Court, Madurai, dated
12.10.2012.
!For Appellants :Mr.C.Vakeeswaran
^For R3 to R5 :Mr.R.Jevaraj
:JUDGMENT
This appeal has been preferred by defendants 4, 6 and 8 to 11 in the suit in O.S.No506 of 2006 on the file of II Additional Sub Court, Madurai (Camp at Thirumangalam). The appellants are none else than the legal representatives of the first defendant, who contested the suit in O.S.No.506 of 2006 on the file of the II Additional Sub-Court, Madurai, camp at Thirumangalam.
2.The respondents 3 to 5, herein, as plaintiffs filed the suit in O.S.No.506 of 2006 for partition and separate possession of 1/4 share each to the plaintiffs and for permanent injunction restraining the defendants from alienating the plaintiffs' share in the suit property. The suit property is an extent of 2.02.5 Hectares in S.No.103/2 in Chinna Ulagani Village, Tirumangalam Taluk, Madurai District.
3.The case of the plaintiffs is as follows:
3.1.The first plaintiff is the mother of the plaintiffs 2 and 3 and second defendant. The first plaintiff is the second wife of late Gurusamy Thevar. The first defendant is the son and the third defendant is the another daughter of the said Gurusamy Thevar, through his first wife, by name, Velayee. The suit property is an ?Inam? land of Perumal Koil and it was for doing service to the said Perumal Kovil. Originally Ryatwari patta was granted to the father of Gurusamy Thevar. After the death of the father of Gurusamy Thever, the first plaintiff's husband and his brother Mayandi inherited the property. Since the said Mayandi also died issueless, the first plaintiff's husband Gurusamy Thevar became absolute owner of the suit property. Since the mother of defendants 1 and 3 died, several decades ago, the plaintiffs and the first defendant are entitled to 1/4 share each in the suit property. The first defendant, suppressing the plaintiffs' right, obtained Patta in his name in the year 1999 and filed a suit in O.S.No.65 of 1999 on the file of the District Munsif Court, Thirumangalam, praying for a decree for permanent injunction. Though the suit was decreed by the trial Court, the plaintiffs 2 and 3 in the present suit has filed an appeal in A.S.No.63 of 2005, on the file of the Additional Sub Court, Madurai. The said appeal was allowed in favour of the plaintiffs 2 and 3. The suit property was held to be a joint property of the plaintiffs 2, 3 and the first defendant along with the other legal heirs of Gurusamy Thevar.
3.2.The first defendant claimed right under the settlement deed alleged to have been executed by one Oorkala Thevar, who claimed title on the basis of a sale deed alleged to have been executed by one Srinivasa Iyengar. The judgment and decree passed in A.S.No.63 of 2005, on the file of the Additional Sub-Court, Madurai, has became final as there was no furhter appeal. Though the first defendant got Patta for the suit property in his name, the plaintiffs 2 and 3 has filed an appeal before the Revenue Divisional Officer, Usilampatti. After holding an enquiry, the Revenue Divisional Officer, granted joint Patta on 25.10.1999, in the name of the plaintiffs 2, 3 and the first defendant. Though the first defendant has filed a revision before the District Revenue Officer, Madurai, as against the order passed by the Revenue Divisional Officer, Usilampatti, the District Revenue Officer, Madurai, confirmed the order passed by the Revenue Divisional Officer, Usilampatti, by order dated 14.12.2001. Pursuant to the order of the District Revenue Officer, Madurai, joint Patta pass book was also issued to the plaintiffs 2 and 3.
4.During the pendency of the suit, the first defendant died on 23.05.2007, leaving the defendants 4 to 11 as his legal heirs. The fourth defendant is the wife of the first defendant and defendant 5 to 11 are the sons and daughters of the deceased first defendant. The suit was contested by the defendants 4 to 11, by taking a defence in line with the pleadings in the suit, earlier filed by the first defendant in O.S.No.65 of 1999, on the file of the District Munsif Court, Thirumangalam. It is the specific case of the defendant that the entire suit property originally belonged to the first defendant's maternal uncle, by name, Oorkala Thevar, who is none other than the brother of the first defendant's mother, by name, Velayee Ammal. It is contended that the said Oorkala Thevar purchased the property from one Srinivsa Iyenger under a registered sale deed dated 24.02.1944. Since the first defendant obtained the suit property under a registered settlement deed, dated 05.05.1973, from the said Oorkala Thevar, it is claimed by the defendants that they are entitled to exclusive title over the suit property.
However, in respect of the suit in O.S.No.65 of 1999, it is contended by the contesting respondents that the Courts below have come to a wrong conclusion earlier about the character of the suit property, as an 'Inam' land and that the title of the first defendant was not considered by the Civil Court in the earlier round of litigation.
5.It is stated that the suit in O.S.No.65 of 1999, being a suit for bare injunction, the issue regarding the title cannot be said to have been decided in the said suit. It is peculiar that the defendants have raised a plea in this case that the present suit is barred by the principle of res- judicata. The trial Court after considering the pleadings and the evidence, found that the issue is covered by the judgment and decree in the previous suit in O.S.No.65 of 1999. Since the suit filed by the first defendant against the plaintiffs 2 and 3 was dismissed, after holding that the suit property is jointly owned by the plaintiffs 2, 3 and the first defendant and that the sale deed and the settlement deed relied upon by the first defendant to claim title are invalid, the trial Court found that the suit is barred by res-judicata and the defendants cannot dispute the right of the plaintiffs, who seek partition.
6.Since specific finding is rendered in the earlier suit that the suit property is not the exclusive property of the first defendant and the issue with regard to the title, had already been decided in the previous suit, the trial Court found that the plaintiffs are entitled to the reliefs as prayed for in this suit. It is pertinent to note that the defendants 2 and 3 remained ex-parte, during the trial and no share was allotted to them holding that in respect of the joint family property, their right under the Hindu Succession (Tamil Nadu Amendment) Act, 1989 has not been established. Aggrieved by the judgment and decree of the trial Court, the defendants 4 to 11, have preferred an appeal in A.S.No.6 of 2014 on the file of the IV Additional District Court, Madurai.
7.The appellate Court has also held in line with the trial Court and confirmed the findings of the trial Court on material issues and held that the earlier suit has been decided on merits and that the findings in the previous suit, with regard to the character of the property have became final. The appellate Court thus dismissed the appeal. Aggrieved by the judgment and decree of the lower appellate Court, the present second appeal has been filed by the defendants 4, 6, 8 to 11. The learned Counsel for the appellants has raised the following substantial questions of law in the memorandum of grounds:
(a) Whether the Courts below are right in holding that the suit for partition is maintainable under the Inam Property, warrants interference?
(b)Whether the Courts below are right in holding that the Civil Court has jurisdiction to decide the rights over the Inam property, when there is a express provision under the Tamil Nadu Minor Inams Act, which clearly barred the jurisdiction of the Civil Court to grant patta, warrants interference?
(c)Whether the Courts below are right in holding that the plaintiffs have not produced the ryotwari patta in respect of the suit Inam property and the granting of decree of partition is valid in the eye of the law, warrants interference?
(d)Whether the judgment can be rendered without framing the issues in the Appellate Court, warrants interference?
8.The trial Court as well as the lower appellate Court, specifically held that the suit property is an ?Inam? Property and inalienable. However, the Courts below have rightly held that the plaintiffs' right to enjoy the property is a possessory right and partible among the legal heirs of Gurusamy Thevar and decreed the suit for partition. The suit property as a whole was in the enjoyment of the said Gurusamy Thever, the father of the plaintiffs 2, 3 and the first defendant. After the death of the said Gurusamy Thever, by succession, the suit property has devolved on the legal heirs of Gurusamy Thevar. The character of suit property as ancestral and the plaintiffs right as members of joint family has bene upheld in the earlier suit in O.S.No.65 of 1999.
9.The learned counsel for the appellants pointed out that the suit property being an 'Inam' property cannot be the subject matter of the partition deed. It is further contended that by virtue of provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, the jurisdiction of Civil Court to grant Patta is barred and that the plaintiff who has not produced the Ryotwari patta in respect of the suit ?Inam? property is not entitled to claim any right, whatsoever in the suit property.
10.First of all, the contention of the appellants is that the Civil Court's jurisdiction is ousted, in view of the specific bar under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, is unsustainable, as decided by a Full Bench of this Court, long back, following the judgment of Honourable Supreme Court in State of Tamil Nadu vs Ramalainga Samigal Madam case reported in 1986 AIR 794. In this Case, the plaintiffs and the defendants claimed that the suit property is in the enjoyment of the individuals. While the plaintiffs claimed right as legal heirs of said Gurusamy Thevar, the defendants claimed right under the sale deed and the settlement deed. There is no dispute with regard to the nature and character of the suit property. The question is about the right of enjoyment, as the legal heirs of the person, in whose favour patta was granted. This Court is not going to deal with the issue as to whether the parties are entitled to patta under Tamil Nadu Minor Inam Abolition Act.
11.Considering the fact that the property is in the enjoyment of the plaintiffs, the Courts below have rightly held that the plaintiffs are entitled to claim share in the property as the legal heirs of Gurusamy Thevar. The fact that the said Gurusamy Thevar was in enjoyment of the suit property was accepted by the Courts below. In these circumstances, this Court find that the substantial questions of law raised by the appellants in this case have no substance. The findings of the Court below are on the basis of material documents, apart from oral evidence. The findings of the Civil Court in the earlier round of litigation in A.S.No.63 of 2005 on the file of the Additional Subcourt, Madurai, cannot be assailed and the judgment and decree in the previous suit will operate as res judicata. In the suit, the plaintiffs prayed 1/4 share for each of the plaintiffs and it is also held that the first defendant is also entitled for 1/4 share in the suit properties. The trial Court granted a decree for partition of 1/4 share in all the suit properties. The defendants 2 and 3 are the daughters of Gurusamy Thevar and the trial Court held that they are not entitled to any share in the property as there is no proof to show that the marriages of the defendants 2 and 3 were after 1989. The appellate Court dismissed the appeal. The first plaintiff is the wife of Gurusamy Thevar and the properties are held to be the absolute properties of Gurusamy Thevar. The suit properties have been treated as the exclusive property of first plaintiff's husband and shares have been given to the plaintiffs, who are the wife of Gurusamy Thevar and three sons of Gurusamy Thevar.
12.The first defendant died during the pendency of the suit and his legal heirs, namely, the defendants 4 to 11 were impleaded as parties. Now, before this Court, it is brought to the notice of this Court that the two other daughters of Gurusamy Thevar, who were born through his first wife, are entitled to a share in the suit properties, but they were not impleaded as parties. However, it is seen that the appellants have filed an application in M.P.(MD)No.1 of 2015, even before numbering of the second appeal to accept the cause title by showing the respondents 6 and 7 in the appeal as parties, though they were not impleaded in the suit as parties. Since they have filed the petition to accept the cause title instead of filing impleading petition to implead them as parties, this Court by order dated 18.02.2018, dismissed the said application. The two daughters, who were now shown as respondents 6 and 7 in the second appeal have filed a petition to implead them as parties in the appeal in C.M.P.(MD)No.1848/2018 in this appeal and the same was ordered. The trial Court did not allow any share to the two daughters, who are already on record as defendants 2 and 3 in the suit, however, no appeal has been filed by the two daughters of Gurusamy Thevar, as against the judgment and decree of the trial Court and the order of lower appellate Court giving equal right only to the three plaintiffs and the legal representatives of the first defendant. In the affidavit filed in support of the petition in C.M.P.(MD)No.5840 of 2018, the respondents 6 and 7 in the appeal stated that they have relinquished their right in the suit property in conformity with the judgment and decree dated 12.10.2012, in O.S.No.506 of 2006 on the file of the II Additional Sub Court, Madurai, confirmed in A.S.No.6 of 2014. It is further stated that the respondents have no objection in confirming the judgment and decree dated 22.01.2015 passed by the IV Additional District Judge, Madurai in A.S.No.6 of 2014. Hence, this Court need not alter the judgment and decree of the Courts below.
13.Hence, this second appeal is dismissed and the judgment and decree in A.S.No.6 of 2014 on the file of the IV Additional District Court, Madurai, 22.01.2015, confirming the judgment and decree in O.S.No.506 of 2006 on the file of the II Additional Sub-Court, Madurai, dated 12.10.2012, is affirmed. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
To
1.The IV Additional District Court, Madurai.
2.The II Additional Sub-Court, Madurai.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.